Const. James Forcillo sentenced to 6 years in streetcar shooting death of Sammy Yatim.

Toronto police Const. James Forcillo has been sentenced to six years in prison for the attempted murder of Sammy Yatim, the 18-year-old shot dead aboard a streetcar in July 2013.

Ontario Superior Court Justice Edward Then opened sentencing Thursday by saying he had “no choice” but to sentence Forcillo to at least the five-year minimum for attempted murder.

The decision will effectively reject Forcillo’s challenge of the mandatory five-year minimum for attempted murder.

His lawyers had argued the minimum should not apply to a police officer on duty. Last January, a jury acquitted Forcillo of second-degree murder, but he was convicted of attempted murder for continuing to shoot at Yatim while the teenager was lying on the floor of an empty streetcar in July 2013.

Police were called after it was reported Yatim had exposed himself to women on the streetcar and drew a switchblade, which Forcillo repeatedly asked him to drop. Forcillo fired two separate volleys — three shots and then six shots — at Yatim, who had consumed ecstasy before boarding the streetcar.

The acquittal was tied to the first volley of shots, but the conviction on attempted murder was linked to the second volley, fired while Yatim was on the ground.

Thursday’s sentencing decision means Justice Then effectively believes that Yatim was only a potential threat when the second volley of shots were fired, not an imminent threat.

Judge cites Forcillo’s ‘high level’ of moral blameworthiness

The judge said all the shots in the second volley were “unreasonable, unnecessary and excessive,” and contrary to Forcillo’s police training.

He rejected the defence’s arguments that Forcillo was justified in firing the second set of shots because the officer mistakenly believed Yatim was trying to get up.

Then ruled that this isn’t supported by evidence presented during Forcillo’s trial. Then said the sentence must match the crime, and that attempted murder is “one of the most serious offences known to law” and Forcillo has a “high level’ of moral blameworthiness for firing the second volley.

Forcillo’s defence team had asked the court for a sentence of house arrest.

Justice Then said Thursday the Crown’s request for an eight- to 10-year prison sentence is “not reasonable.” Justice Then said police officers must be held to a higher standard than members of the public and added that Forcillo should have used de-escalation or communication techniques to get Yatim to surrender his weapon.

Justice Then said Forcillo “failed in his duty to Mr. Yatim” when he fired the second volley of shots.

Const. James Forcillo to be sentenced for attempted murder of Sammy Yatim

Three years and one day after Const. James Forcillo shot and killed Sammy Yatim on an empty Dundas streetcar, he will be sentenced for attempting to kill the dying teenager by firing another six shots.

It is rare for a police officer to be convicted of an unjustified use of force, and rarer still for police officers to be sentenced to jail time.

But Forcillo’s case, as was repeatedly said during a five-day sentencing hearing in May, is unique — he is the only officer in Canada to have been convicted of attempted murder with a firearm while on duty, according to his lawyers. He is also one of the few people to be convicted of attempted murder when the victim died.

Forcillo, 33, faces a mandatory minimum of five years, but his lawyers have argued such a sentence would be unconstitutional and “grossly disproportionate” for a lawfully armed police officer duty-bound to act to stop a threat. Instead, they argued he should serve two years of house arrest.

The Crown argued that by shooting at Yatim a further six times when he posed no threat, Forcillo seriously breached the duty of care he owed the teenager in a state of crisis. An appropriate sentence is between eight and 10 years, they argued.

If Justice Edward Then rejects the defence’s constitutional challenge and bid for house arrest, it will mean there should not be a more lenient standard for police officers who use violence unlawfully, says criminal defence lawyer Reid Rusonik, who was not involved in the case.

“In that case, (police officers) should know going forward if they use force unlawfully, they will judged like anyone else,” he said.

The public does have the perception that police get a free ride in the justice system, says Alan Young, a criminal law professor at Osgoode Hall.

He says it is difficult to compare sentences handed down to officers for serious offences to non-officers because charges and convictions for police officers are uncommon.

“When an officer comes before the courts, it is very important for the court to know the significance of their ruling,” he says. “If you don’t bring accountability to law-breaking officers you erode trust between the police and the community. And the most divisive thing is perceived lenience given to police officers who break the law.”

Echoing a point made by Justice Then during the sentencing hearing, University of Ottawa criminologist Darryl Davies says the ruling must reflect that police already have special protections in the law allowing reasonable use of force. This case has clearly highlighted the need for police training reform, he says.

“Police officers must be held to a higher standard and that therefore means we need to rethink the whole process,” he says.

Forcillo was acquitted of second-degree murder by a jury after a four-month trial that ended in January, a verdict that means the first three shots fired at Yatim, including the one that eventually killed him, were legal.

But the next six shots fired after a pause of five seconds went too far, the jury’s guilty verdict on the attempted murder charge suggests. Five of the six shots struck Yatim’s lower body, paralyzed from a previous shot to the spine.

It will be up to Justice Then to determine the facts of what happened that night based on the jury verdicts.

In sentencing Forcillo to jail time, Then may consider that prison is known to be particularly dangerous for police. Officers who do go to jail are often kept in protective custody — effectively solitary confinement, says criminal lawyer Daniel Brown who was not involved in the case.

But in a case like this, involving a mandatory minimum prison sentence, it is unlikely to make a significant difference, he says.

“It is very rare for officers to spend any time in jail even when faced with very serious offences . . . but here there is no creative way around the sentence the judge must impose.”

In the case touted as most similar to Forcillo’s, that of an RCMP officer in Alberta who was convicted of manslaughter with a firearm after shooting an inmate, the officer served three months of his four year sentence in 2006 before being granted full parole.

Should Forcillo be sentenced to jail time, he is expected to seek bail pending appeal of his conviction and sentence, and may be released the same day.

He has already filed a notice of appeal on his conviction. His main argument is that the jury should not have been allowed to consider the murder charge and attempted murder as separate offences because both charges stem from one continuous act, and as result the verdicts are inconsistent.

He also argues Then erred by refusing to allow the defence to present certain pieces of evidence to the jury, including testimony on “suicide-by-cop.”

It could take more than a year for the Court of Appeal to hear the case and rule on it. Depending on the result, the case could go to the Supreme Court of Canada.

Forcillo also faces a police tribunal hearing that has been postponed until the sentencing is complete.

TORONTO – A police officer found guilty of attempted murder in the death of a teen on an empty streetcar will be back in a Toronto courtroom today, where his lawyers will argue for a sentence of house arrest.

Const. James Forcillo has filed a constitutional challenge to the mandatory minimum sentence of four or five years that he faces in the shooting death of 18-year-old Sammy Yatim.

Forcillo was acquitted of second-degree murder in Yatim’s death in January, but a jury found the officer guilty of attempted murder for continuing to fire after the dying teen had fallen to the floor.

Forcillo’s lawyers are arguing that certain sections of the Criminal Code involving the mandatory minimum sentence for attempted murder are unconstitutional and weren’t meant to deal with cases like Forcillo’s.

Yatim’s July 2013 death, which was captured on cellphone video that went viral, triggered public outrage and prompted Toronto’s police chief to launch a review of officers’ use of force and their response to emotionally disturbed people.

Forcillo, who is out on bail, had pleaded not guilty to the charges he faced in Yatim’s death.

Ontario Superior Court Judge Ed Then will sentence Toronto Police Const. James Forcillo for the attempted murder of Sammy Yatim on July 29.

The sentence will come three years and two days after Forcillo fatally shot the knife-wielding Yatim on an empty downtown streetcar.

Earlier this year, a jury acquitted the 33-year-old cop of second-degree murder for firing the first and fatal volley of shots but convicted Forcillo of attempted murder for unleashing a second volley as Yatim lay dying on the streetcar floor.

Crown attorney Ian Bulmer urged Then to imprison Forcillo for eight to 10 years for his “excessive, gratuitous, unreasonable handgun violence.”

The judge should “set an example that the conduct engaged in by Const. Forcillo — the deliberate, unreasonable and criminally excessive attempt to extinguish the life of Sammy Yatim with a hail of hollow-point bullets — will not be tolerated … in our free, democratic society founded upon the rule of law,” said Bulmer.

“Forcillo was cavalier and reckless in this case.”

Police officers must receive the clear message “that they are not above (the law),” Bulmer argued.

Forcillo’s lawyer Peter Brauti said if the judge doesn’t rule the mandatory minimum sentence law as unconstitutional then his client should receive the minimum five-year sentence.

“If this case doesn’t deserve the lowest possible punishment available, then what does?” asked Brauti.

“How can this not fit the bill for the minimum?” he said, comparing this shooting with other, horrendous domestic violence cases.

“The facts here are much less eggregious than these other cases.”

Forcillo, who had no prior criminal record, was a junior officer with only 3.5 years of experience when he shot Yatim. The 18-year-old was high on drugs and brandishing a knife, frightening but not physically harming anyone.

Forcillo, a father of two young children aged seven and five years, “has demonstrated strong character traits for well over two decades,” said Brauti. “He’s a thoughtful, caring man.”

As a teenager, Forcillo was his dying mother’s major caregiver, cooking, washing, cleaning and driving her to chemotherapy sessions.

“He was prepared to think of others before he embarked on his policing career,” said Brauti.

Forcillo was simply acting on his training, Brauti suggested.

“He doesn’t know Yatim. He has no axe to grind with him,” he stressed.